DOMA, Prop 8 struck down by U.S. Supreme Court


SAN DIEGO, June 26, 2013 – In two highly anticipated rulings, the U.S. Supreme Court struck down the federal Defense of Marriage Act (DOMA) in a 5 to 4 decision, calling it unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.

The Court also vacated the Ninth Circuit Court of Appeals’ judgment in Hollingworth vs. Perry, the case regarding California’s Proposition 8. This is a trickier ruling. The court held that the backers of Proposition 8 lacked the standing under federal law to appeal in the first place. This vacates the  the Ninth Circuit Court of Appeal’s decision, leaving the ruling by U.S. District Court Judge Vaughn Walker that Prop 8 is unconstitutional as final. Bottom line: same-sex marriage is once again legal in California. However, there could still be a challenge by Prop 8’s supporters.

Despite the rulings today, the legal issues surrounding same-sex marriage in the U.S. are far from over.

In the opinion by Justice Anthony Kennedy written for the majority, “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others.”

Chief Justice John Roberts wrote in his dissent of the DOMA case, United States vs. Windsor, “The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States … may continue to utilize the traditional definition of marriage.” This is an important point.

While these laws are a step forward, they are not the total victory supporters of marriage equiality are looking for. For now, the current political and legal conflicts that affect thousands of couples across the United States will continue. It seems it will take several more decades to extend equal rights under the law to every segment of society.

Having the Supreme Court rule that DOMA is unconstitutional will provide some incentive for states which do not recognize same-sex marriage to stop their discriminatory practices. But this is not the reality today, and probably not tomorrow. No one will be rushing down to the courthouse to get married.

Today we have a crazy quilt of laws from state to state, wrecking havoc on families, keeping lawyers awake at night trying to figure out how to navigate common family law issues regarding marriage, divorce, child custody, support, medical decision-making, estate planning and taxation.

Connecticut, Deleware, Iowa, Maine, Maryland, Massachusetts, Minnesota (as of August 1), New Hampshire, New York, Rhode Island (as of August 1), Vermont, Washington State, the District of Columbia and three tribal jurisdictions currently issue marriage licenses to same-sex couples. As a result of the Supreme Court’s decision in United States v. Windsor, same-sex couples who marry in one of these states or tribal jurisdictions will now have access to the more than 1,000 legal benefits federal law allows to married people.

The Supreme Court narrowed its decision regarding California’s Proposition 8 to California alone. It leaves all laws in the other 49 states intact, “as is,” wit no effect on the other states. Because the Court declined to get involved and set a precedent, it simply means that California joins the 13 states and three tribes that permit same sex marriage. It’s not helpful to the overall legal and political effort to render the prohibition of same-sex marriage unconstitutional in the United States.

State laws that forbid same-sex marriage in states like Kansas, Florida, Texas, or Oregon, will still apply. Same-sex couples will not have any access to federal legal protections since they remain unmarried in the eyes of their home state.

So gay couples face difficult legal circumstances at many levels, especially when they have a change of address across state lines from one state where same-sex marriage is legal to one where it is not legal. Family law attorneys like me will continue to make a lot of money at their expense.

Dozens of states have passed their own “defense of marriage” laws. In those states, even if you got married legally somewhere else in the U.S. or in one of the foreign countries that recognizes same-sex marriage like Canada, Spain, or South Africa, that state will not recognize your marriage. This could mean being frozen out of state level benefits provided to heterosexual couples, no state tax benefits, no protection from discrimination and other legal rights.

Those who would argue that civil unions can guarantee all the same rights afforded by marriage to same-sex couples are incorrect. If nothing else, having to go to an attorney to put into place the many protections the law gives to married couples is time-consuming and expensive.

We need to separate both legally and morally the religious or spiritual definition of matrimony, and the legal definition of a marriage under this country’s civil laws. We need to make it uniform, applicable to all in all 50 states. Courts won’t be clogged and families will be healthier and happier because fairness will exist. Lawyers will lose some income. They’ll figure out a way to make up the difference, or maybe take a vacation.

Then we could pay attention to some bigger issues, like putting a stop to domestic violence and bullying, helping people beat addiction, improve education, create jobs and figure out where Jimmy Hoffa is buried, things like that.

Myra Chack Fleischer serves as Lead Counsel for Fleischer & Ravreby in Carlsbad, California with a focus on divorce, property, custody and support, settlement agreements, mediation, asset division and family law appeals. Read more Legally Speaking in Communities Digital News. Follow Myra on Twitter: @LawyerMyra.

Copyright © 2013 by Fleischer & Ravreby, Attorneys at Law

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